Tier 1 changes and other planned changes

New Statement of Changes on the Immigration Rules being planned in December 2018, which should be implemented post Jan 2019. Some of the key points to take from the announcement is as follows:

  1. The Tier 1 Investor route is likely to be suspended, so that new changes can be planned by UKVI. The current policy and rules on the Tier 1 Investor route can be found here: https://icslegal.com/tier1-investors.php.
  2. Our understanding following the Immigration Minister’s statement is that the Tier 1 Investor route is currently being used by organised crime and money laundering.
  3. The current Tier 1 Entrepreneur visa is being replaced with the new “Innovator” route, which would bring forward new changes and requirements for those seeking to set up or buy a UK based business.

Nokes’ full written statement to the Commons is below:

“My rt hon Friend, the Home Secretary, will shortly be laying before the House a Statement of Changes in Immigration Rules.

“The Government is clear that entrepreneurs play a key role in creating jobs and driving economic growth, which is vital to the prosperity of the UK. In June of this year, we announced a new Start-up visa route. This will build upon the successes of the current Tier 1 (Graduate Entrepreneur) route, expanding it to ensure that the UK can benefit from a wider pool of overseas talent looking to establish new businesses in the UK. Applicants will be endorsed by either a business or higher education institution sponsor.

“We are announcing that we will build on this offer further by introducing a new Innovator route, for more experienced business people. This will replace the current Tier 1 (Entrepreneur) route and have a similar emphasis on endorsement by a business sponsor, who will assess applicants’ business ideas for their innovation, viability and scalability.

“Alongside this, we will reform our Tier 1 (Investor) route.

“These reforms will be introduced in the spring and will ensure the UK remains a world-leading destination for investment and innovation. We will shortly be publishing a Statement of Intent setting out the details of how the reformed routes will work and I will place a copy in the House Library.

“We are also introducing wider changes through these Immigration Rules which demonstrate our commitment to supporting talented leaders in their fields, and promising future leaders, coming to the UK under the Tier 1 (Exceptional Talent) route. The changes will expand this route to provide for a route of entry for leading architects endorsed by the Royal Institute of British Architects, under the remit of Arts Council England (ACE). This change builds upon other reforms to the route earlier this year, including doubling the number of places available, providing for faster settlement to existing leaders in their fields endorsed under this route, and expanding the route to leading fashion designers, also endorsed under the remit of ACE. We will continue to work closely with our partners in this route to attract more leading international talent to the UK.

“More broadly, the changes also include a number of minor, more technical changes to our Tier 1 and Tier 2 routes for highly skilled workers. These changes will be made to ensure the Immigration Rules remain up-to-date and for consistency purposes.

“The Government greatly values the roles played by our charities and religious institutions and those who wish to come to the UK to contribute to these organisations are extremely welcome. However, there are some issues with the routes as they currently operate.

“Our immigration system makes specific provision for both Ministers of Religion and those coming as religious workers. This distinction between the two roles reflects the importance we place on our faith leaders speaking English to a high standard, whilst at the same time still permitting other members of religious communities to contribute to the UK in non-pastoral roles.

“Whilst it is not the intention of the Tier 5 Religious Workers route, our current rules could permit religious workers to perform roles, that include preaching and leading a congregation, without first being required to demonstrate that they speak English to an acceptable standard. To address this, we are prohibiting Tier 5 Religious Workers filling roles as Ministers of Religion and direct them instead to do so through the correct Tier 2 Minister of Religion sub-category. This will require Ministers of Religion to demonstrate a strong command of English and ensure they can interact with the community around them.

“The Tier 5 arrangements for Religious Workers and Charity Workers have always been intended to provide for only limited periods of residence in the UK of up to two years. We have however seen instances of migrants in these categories repeatedly applying for consecutive periods of leave, in effect achieving ongoing residency in the UK. We will therefore introduce a ‘cooling off period’, preventing Tier 5 Religious Worker and Tier 5 Charity Worker visa holders from returning to the UK, via these immigration routes for 12 months after their visa expires. This change ensures that we will continue to welcome those coming to make a contribution to our religious and charity organisations, whilst at the same time underpinning the Government’s intention that these are temporary routes.

“On 6 September the Home Secretary issued a Written Ministerial Statement (HCWS940) announcing the introduction of a new pilot scheme for 2019, enabling non-EEA migrant workers to come to the UK to undertake seasonal employment in the Horticultural sector. These amendments will set out the legislative framework for introducing this pilot.

“This small-scale pilot will test the effectiveness of our immigration system at alleviating seasonal labour shortages during peak production periods, whilst maintaining robust immigration control and ensuring there are minimal impacts on local communities and public services.

“The organisations chosen to fill the role of scheme operators for this pilot have been selected following a fair and open selection process, undertaken by the Department of the Environment, Food and Rural Affairs.

“The formal date of implementation for this pilot will be announced in due course.”

If you require any immigration advice or believe your application may be affected by the new changes, speak to us today on 0207 237 3388 or email us at info@icslegal.com

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Medical Training Initiative

The Medical Training Initiative (MTI) is a national scheme designed to allow a small number of doctors to enter the UK from overseas for a maximum of 24 months, so that they can benefit from training and development in NHS services before returning to their home countries.

Through the MTI, trainee doctors from countries outside the European Union are offered the opportunity to learn from experienced consultants within the UK national health system. From April 2017 the Department of Health, Health Education England and the Academy of Medical Royal Colleges agreed changes to the arrangements for processing applications for MTI Certificates of Sponsorship (CoS) from applicants from countries other than those identified as Department for International Development (DfID) priority countries or World Bank Low Income and Lower Middle Income Countries (LI & LMI).

New applications from countries not considered DfID priority or LI&LMI countries will be placed on a revised waiting list and will be processed only if and when there is capacity at the end of each calendar month. While we do not turn away applications for doctors based in other countries, applicants from these countries and employers will need to recognise that the waiting list may become quite long and reduce only slowly. This means that these applicants may be better off finding alternative routes for employment and immigration through Tier 2 entry.

After extensive consultation, Health Education England and the Academy of Medical Royal Colleges launched new standards for the Medical Training Initiative in February 2018. They are aimed at those administrating and approving placements and will sit alongside and complement guides and information which are already available on this site.

They set the benchmark for the minimum requirements of MTI schemes which last more than 6 months, are aimed at doctors and are for use across the whole of the United Kingdom. Recognising the variety of MTI schemes, the standards aim to give flexibility for the allocation of responsibilities, where more than one organisation is involved in providing the scheme. It is expected that organisations and individuals will work together to ensure the standards are met.

The MTI Scheme was established by the UK Department of Health in February of 2009 as an immigration category under the Tier 5 Government Authorised Exchange (GAE) class of the points based immigration system. The Tier 5 GAE permits entry to the UK for overseas nationals coming to undertake exchanges or educational initiatives sponsored by government departments.

The Academy of Medical Royal Colleges took on the role of National Sponsor of the scheme in March of 2010. As National Sponsor the Academy is responsible for the issuance of Tier 5 certificates of sponsorship to be used for visa application. Additionally, the Academy plays a role an integral role in promotion of the scheme..

The Academy of Medical Royal Colleges is also an ‘A-Rated Sponsor’. This means MTI applicants will not be required to provide evidence of £945 in a savings account as part of their Tier 5 visa application.

The prioritisation and allocation criteria were updated in January 2017 to reflect the Department of Health’s main focus for doctors from the DFiD priority and L&LMI countries to benefit from the scheme and, therefore giving priority to developing healthcare systems; the new criteria reflects the principles and intent of the scheme, more information can be seen on the Prospective Applicants page.

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£2.3 billion boost and 1,600 jobs created as UK tech goes global

The Prime Minister will host a raft of cutting-edge companies for a roundtable, as part of London Tech Week, to showcase Britain as the best place in the world to run a tech company. This event kicks off a series of roundtables to drive inward investment in key sectors.

Companies announcing investment today include:

  • Salesforce, who are investing of $2.5 billion in the UK over the next five years, which will include the opening of a second UK data centre in 2019
  • Mubadala, who are launching £300 million European investment fund based in the UK
  • NTT data who are investing £41million to open a new office and Innovation Centre, creating up to 200 jobs over the next three years

The Prime Minister will in turn make a number of commitments so that tech companies will also benefit from government funding, and greater access to talent and data under new plans.

These announcements will include:

  • a new £2.5 billion British Patient Capital programme, which is expected to attract a further £5 billion in private investment, to support UK companies with high growth potential to access the long-term investment they need to grow and go global
  • a new Start-Up Visa for entrepreneurs will launch in Spring 2019. This will replace a visa route which was exclusively for graduates, opening it up to talented business founders. This will include accelerators playing a role in the endorsement of candidates
  • Roger Taylor will be announced as Chair of the Centre for Data Ethics and Innovation, alongside a consultation on the role of the Centre – a key part of plans for a new National Data Strategy
  • opening up key parts of the Ordnance Survey’s valuable geospatial data to small businesses for free to boost competition in the digital economy
  • two new Tech Hubs will be launched in Brazil and South Africa, to build innovative partnerships and develop skills, capability and business networks in these markets

Over 180 tech founders, entrepreneurs and investors will also attend a reception at Downing Street this evening, which will celebrate the UK’s position as a world-leading destination for tech investment.

Britain is leading Europe in tech investment as evidenced last week when Amazon announced the creation of 2,500 jobs, and yesterday when Big Commerce announced that it will open its first European office in London this year. BT also announced yesterday that it has built the UK’s first practical quantum-secured high-speed fibre network between Cambridge and Ipswich.

Last year, British tech businesses attracted $7.8 billion of funding, almost double the amount received in 2016, compared to France and Germany’s combined total of $6 billion and the Prime Minister will reaffirm that the UK’s leadership is set to grow as our modern Industrial Strategy drives further investment in centres of UK expertise.

Some 2.1 million people are now employed in the digital tech economy and a new digital tech job is created in the UK every 50 minutes, according to new estimates released this week by Dealroom and Tech Nation.

Founders Forum, who will be in Downing Street today, will also launch a new start-up competition across UK secondary schools and universities to inspire the next generation of entrepreneurs.

Prime Minister Theresa May said:

The measures we are announcing today will allow innovative British start-ups to invest in their future – and in the UK – by hiring more skilled people, expanding their business and exporting their expertise across the world.

It’s a great time to be in tech in the UK, and our modern Industrial Strategy will drive continued investment, ensuring the nation flourishes in the industries of the future and creating more high-paying jobs.

Chancellor Philip Hammond said:

The UK is home to some of the world’s most innovative companies and I want to make sure that they stay at the forefront of the tech revolution. So, British Patient Capital will provide an extra £2.5 billion for these cutting-edge business ensuring Britain remains one of the best places to start and grow a company.

International Trade Secretary Dr Liam Fox said:

The UK is already a world-leading destination for tech investment with one tech start-up opening every 50 minutes. Our tech sector, with our strong legal system, skilled workforce and low taxation economy combine with our world class universities to make us the most attractive home for investment in Europe.

As an international economic department, DIT will continue to encourage investment from overseas with a further series of events to attract inward business. Last month we launched a new online portfolio of opportunities worth £30 billion, and in turn this will drive growth and create jobs in our economy.

Culture Secretary, Media and Sport Matt Hancock said:

Britain is a digital dynamo with the government and tech sector working together to help make this country the best place in the world to start and grow a digital business. We’re encouraging the best and brightest tech talent to come to the UK and creating the right conditions for our high growth digital businesses to thrive.

We are spearheading digital innovation in exciting areas such as Artificial Intelligence and our network of tech hubs will connect us with some of the leading emerging technology nations across the world to share best practice.

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PM speech to Times CEO Summit: 26 June 2018

Introduction

As business leaders, you will understand exactly what the nineteenth century American politician Daniel Webster meant when, as a young man, he was considering what career to pursue.

After some thought, he decided to become a lawyer.

His friends told him it was a bad idea.

It was highly competitive. Most people who tried it did not succeed.

Hadn’t he better choose a field in which it would be easier to find a place?

No, he replied. ‘There’s always room at the top.’

Real success does not come from setting your sights low.

It comes from striving to be the best.

That is what British businesses have always done.

You create the wealth and the jobs that provide the backbone of our economy.

Your innovation and creativity are vital ingredients in our success as a nation.

A Conservative government will always listen to your voice and back you every step of the way as you help grow our economy and create more good jobs.

And what’s true for businesses is true for nation states in a globalised economy – to stand still is to fall behind.

The United Kingdom is not standing still.

In leaving the EU we are charting a new course in a changing world.

Brexit presents significant opportunities and I am confident that we can build a more prosperous and secure United Kingdom in the years ahead.

To do so, we must achieve the best Brexit deal, pursue our modern Industrial Strategy to deliver jobs and growth, and make sure our economy truly works for everyone in society.

The best Brexit deal

In the Brexit negotiations, we continue to make good progress.

You will each have conducted negotiations yourself, so you will know that they are never straightforward.

They are complex and can generate uncertainty.

But at every stage of the Brexit process we have sought to reduce uncertainty as much as possible.

Last week Parliament approved the EU Withdrawal Bill and today it will receive Royal Assent.

It will provide the legal certainty we need to ensure a smooth and orderly Brexit.

In December we achieved sufficient progress in the first phase of the negotiations, reaching agreement on the rights of EU citizens and UK citizens in Europe; on a good financial settlement for taxpayers; and on the need for no hard border between Northern Ireland and Ireland.

In March we reached agreement with the EU on an implementation period to ensure a period of time for business and citizens to adjust to the new relationship after we leave in March 2019.

Next month we will publish a White Paper setting out in detail what our future relationship with the EU should look like.

We have listened carefully to the voices of business throughout, and your input has helped to shape our negotiating position.

Our goal – a deep and special partnership that ensures trade remains as free and frictionless as possible and allows established patterns of trade to continue without disruption – is ambitious but it is achievable, because it is in the mutual interest of the UK and the EU.

To make a success of life outside the EU, and to fully seize the opportunities it will present, getting the right Brexit deal will be essential.

But this alone will not be sufficient. We also need to look to the future in a fast-changing world and ensure that our economy is ready to rise to the challenge of creating the jobs of tomorrow.

Our modern Industrial Strategy is our plan to do just that.

The Modern Industrial Strategy

It is rooted in the belief that free markets provide the best engine for growth, jobs and prosperity.

Its premise is very simple: for businesses to thrive, government has to step up and secure the foundations of productivity.

Providing an education system that works with business to deliver the rights skills mix for our economy.

Improving standards in our schools.

Encouraging diverse provision in higher education.

Transforming technical education with new high-quality T-levels that are every bit as good as A-levels, and Institutes of Technology to provide higher-level training.

Young people in school or in college today will start their careers in the economies of the 2020s and 2030s.

They will live to do jobs that do not yet exist, and may change sectors several times during their careers.

So our new national re-training scheme will help workers of all ages adapt their skills to the needs of the future.

We also need to deliver the infrastructure for growth – faster trains, bigger stations, better road connections, next generation mobile and broadband.

That is what we are doing with the biggest roadbuilding programme since the 1970s, the biggest investment in our railways since Victorian times, and a National Productivity Investment fund of over £30 billion to boost housebuilding and transform our digital infrastructure.

Last night the House of Commons backed building a third runway at Heathrow – a vote of confidence in the UK’s determination to compete on an international stage and win new global trade in the years ahead.

We will also ensure that people have the homes they need in the places they want to live, by changing the planning rules and doing much more to turn planning permissions into bricks and mortar.

Housing is as an essential infrastructure investment within the Industrial Strategy. Making housing more affordable will free up resources for more productive investment and help people move homes more easily, leading to a more productive workforce.

This will not deliver change overnight, but that is what Industrial Strategy is all about: taking action for the long-term that will pay dividends in the future.

The role of the state, however, goes beyond simply fixing those essential economic foundations.

Government, the private sector and academia working as strategic partners achieve far more than we would separately and alone.

To compete in a globalised economy and play to our historic strengths as innovators and pioneers, both the public and private sector need to invest in the ideas of the future.

So we have set an ambitious goal of lifting UK public and private research and development investment to 2.4 per cent of GDP by 2027.

To guide this joint endeavour, we are working with business and academia to develop the four Grand Challenges that sit at the heart of the modern Industrial Strategy.

These are four of the big drivers of social and economic change in the world today, which carry huge potential for economic growth if we face them head on.

First, artificial intelligence and the data revolution – which are transforming business models and employment practices.

Second, changes in the future of mobility – which are revolutionising how we travel and move goods.

Third, our ageing society – which makes new demands but also creates new opportunities.

And fourth, the revolution in clean growth that our commitment to fight climate change is driving.

By focusing our efforts on meeting these four Grand Challenges we can develop new exports, grow new industries, and create more good jobs.

We know that setting clear missions can drive human endeavour, leading to faster solutions to the problems we face.

So last month I set the first four missions in each of the Grand Challenge areas.

Saving lives by using data, AI and innovation to transform the prevention, early diagnosis and treatment of diseases like cancer, diabetes, heart disease and dementia.

Helping people live independent lives for longer through new technology.

Cleaning our air by making all cars and vans effectively zero emission by 2040.

And protecting our planet by halving the energy use of new buildings by 2030.

These are ambitious goals to drive faster progress in delivering social improvements that will benefit everyone.

An economy that works for everyone

We should never forget that the primary purpose of our economic policy must be to raise the living standards and protect the livelihoods of the British people.

And for people to retain confidence in a free market economy, they must feel the benefits of it and see clearly that everyone is playing by the same rules.

This is more important now than ever.

When people become disenchanted by the economic system we have a choice – simple, populist answers that seek to smash that system – or reforming solutions that recognise people’s concerns as genuine and enlist the power of business to change itself for the better.

That’s why the Industrial Strategy makes spreading jobs and prosperity across the UK, especially to communities that have been left behind, a priority.

It is why we are strengthening the UK’s corporate governance regime, to give workers and shareholders a stronger voice and incentivise firms to take decisions for the long-term.

As employment practices evolve, that is why we are implementing the recommendations of the Taylor review, updating the rules so that good, rewarding, work remains available for all.

And from closing the gender pay gap and getting more women onto boards, to broadening the social and ethnic diversity of management – there is so much that you, as business leaders, can do to create an economy that is more deserving of public support.

Conclusion: being the best

The United Kingdom is a great country with a bright future.

After years of hard work and sacrifice from the British people, we can now move forward with our balanced approach to the public finances that gets debt falling while also investing in our public services.

The fruits of that labour have put us in the position to announce a major investment in our NHS – the public service we value most dearly – to secure it for the future.

That will not just deliver better care, it will also ensure that businesses have a healthy and productive workforce to draw from.

We are blessed with tremendous assets.

We speak the global language of business.

The Greenwich meridian puts us in the perfect time-zone for international commerce.

London is the world’s premier financial hub.

We are home to the planet’s finest universities.

We have produced more Nobel Prize winners than any country apart from America.

Our system of representative government is replicated around the globe.

Our courts set the gold standard for incorruptibility.

Our soft power is unrivalled.

Our cultural, intellectual, and technological contributions to the world are without equal.

And our ambition for the future is to be the very best we can be.

To get the best possible Brexit deal.

To build an economy that works for everyone.

There is room at the top of tomorrow’s global economy for a country with our talents and ambition.

You all have a vital role to play in getting Britain there.

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PM: We will deliver a farming policy which supports agriculture and improves the environment

The UK will maintain environmental protections, safeguard animal welfare and support the production of high quality food, the Prime Minister will say tomorrow as she meets farmers and food producers at the Royal Welsh Show in Llanelwedd, Powys.

Theresa May will set out the government’s plans for a post-Brexit farming policy which works for farmers and food producers, while improving the environment, by replacing the EU’s Common Agricultural Policy – which awards subsidies based on the amount of land farmed – with a new system of public money for public goods.

In a roundtable with farmers and agricultural organisations including the Royal Welsh Agricultural Society, Farmers Union Wales, NFU Cymru and the CLA, the Prime Minister will also reiterate her commitment to maintaining current funding levels until the end of this Parliament to ensure farmers have the certainty they need to plan for their business.

Prime Minister Theresa May said:

This Government is committed to supporting the half a million people who work in agriculture and growing our world leading food and drinks sector, which contributes over £100 billion to the UK economy. But we also need to protect the farmed environment for future generations.

Leaving the EU presents us with a unique opportunity to transform our food, farming and environmental policies so we can have a healthy and prosperous agricultural industry that is fit for the future, and helps us to leave the environment in a better place than we found it.

Scrapping the Common Agricultural Policy, and introducing a simpler system which provides funds in return for public goods, like improving water quality, reducing emissions and planting wild flower meadows to boost biodiversity, is fundamental to our new approach.

I want to make the most of the freedoms provided by Brexit to design a new scheme that is less bureaucratic, and does away with the overly prescriptive information farmers currently have to provide to apply for grants.

I commend our hard working farmers up and down the country, and here in Wales, who deserve better than the fundamentally flawed CAP system. That is why I want to hear from them today about what they need so we deliver a farming policy which supports the whole industry.

And while our proposals are for England only, I look forward to working with the Farming unions, Welsh Government and stakeholders to best serve our farmers here as they develop a scheme specific to Wales.

During her visit the Prime Minister will also meet with the Wales Young Farmers Club, and stall-holders in the Food Hall, sponsored by Food is GREAT, alongside setting out measures from the 25 Year Environment Plan to protect the nation’s countryside and steps to bring forward the first Environment Bill in over 20 years.

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PM’s speech in Cape Town: 28 August 2018

Good morning everyone, and thank you all for joining us today. It’s a pleasure to be here in Cape Town, a city whose recent past lends it a special resonance for many around the world, and which symbolises the transformation experienced by South Africa.

Out in the bay lies Robben Island, where for so long so many were unjustly imprisoned for dreaming of a country in which the colour of your skin made no difference to your rights and opportunities.

Foremost among them was, of course, Nelson Mandela. As the world marked the 100th anniversary of his birth earlier this year, a memorial to the great man was unveiled in Westminster Abbey. There it sits alongside tributes to the kings and queens, poets and scientists who have shaped my nation’s history – a fitting recognition of the lasting impact Mandela made on the world.

Mandela’s walk to freedom – and that of South Africa – was long and arduous. But 28 years ago, barely a mile from here at Cape Town City Hall, he spoke for the first time following his release from decades behind bars.

Four years later, on Grand Parade, the newly inaugurated president of South Africa spoke of his election not as a victory of party, but of people. Of the power of democracy, and the necessity of unity, of equality, of universal rights.

He spoke of the need to transform not just the culture and politics of South Africa, but its economy too. Of his desire to “change South Africa from a country in which the majority lived with little hope, to one in which they can live and work with dignity, with a sense of self-esteem and confidence in the future … building a better life of opportunity, freedom and prosperity.”

It was a bold vision, one shared not just by millions of South Africans but hundreds of millions of people across the world.

People including Kofi Annan. His unlikely journey from Ghanaian suburbs to global leadership took a very different route to that of Mandela. Yet, like your former president, Annan’s impact, influence and values spread well beyond the borders of his beloved homeland. And, like Mandela, the world is a poorer place for his passing – but all the richer for his legacy.

The life stories of these two great men encapsulate the ebbs and flows of history. They demonstrate just how much can be achieved over the course of a lifetime. But also that progress can never be taken for granted – the fight to secure our gains is constant.

Mandela was born in 1918 with the world on the brink of peace from a war that was meant to end all war. But when Annan was born just twenty years later, those dreams of a lasting peace were about to be shattered once again, claiming millions of lives, including many from this continent.

It was in the aftermath of this devastation that the United Nations – the organisation that half a century later Annan would go on to lead – was founded. And despite false starts and mistakes along the way, global institutions and co-operation established in this period have delivered great gains for development.

It was at the same time, that independence movements of a generation of new nations, took on a renewed urgency. People across the world won the right to self-determination, constitutions were written and countries were born.

And the embrace of free markets and free trade, which accelerated further with the end of the Cold War, has acted as the greatest agent of collective human progress the world has ever seen. In those countries that have successfully embraced properly regulated market economies, life expectancy has increased and infant mortality fallen. Absolute poverty has shrunk and disposable income grown. Access to education has widened, and rates of illiteracy plummeted. And innovators have developed technology that transformed lives.

The progress that we have made over the past century is remarkable. The opportunities for the next generation even more so. But to deliver on that promise we need to recognise new challenges.

As war and state-based conflicts have declined, it has been replaced by new threats. In the past five years, terrorists have killed around 20,000 people in Africa – from the 2013 siege in Nairobi’s Westgate shopping centre to last year’s horrific truck bombing in Mogadishu and March’s al-Qaeda attacks in Burkina Faso. Whether in Europe or Africa, non-state actors are threatening our lives and radicalising our people.

And today, malign state activity is on the rise – from cyber attacks on national infrastructure and institutions, to the use of chemical weapons on the streets of the UK and Syria.

While free trade and globalisation have brought huge benefits, they have not been felt by everyone and too many of our citizens fear that they will be left behind. From the great Financial Crisis of 2008, to the advent of artificial intelligence replacing human labour, people are questioning the model of economic development we seek to defend.

And as we face such troubling questions, the capacity for governments old and new to provide the answers is being challenged.

For some, the solution lies in seeking to halt or reverse change. Undermining the institutions of global co-operation, rebuilding the barriers to trade, viewing global competition as a zero sum game.

I disagree.

Because these are not challenges faced by a single nation alone.

The ideology that inspires vicious terrorist attacks does not respect borders. A chemical weapons attack does not only harm its victims but weakens the rules that protect us all from such behaviour. In a more connected world we must all deal with the consequences, for good and ill, of increased mobility – not just of people through migration flows, but also of money, of data, of ideology. And we should recognise that competition and cooperation are not opposites. They can be mutually reinforcing.

So now is the time for the nations of the world to come together. To co-operate. To view international competition as a process through which both sides can benefit. To work as partners, sharing our skills, our experience and our resources to tackle the challenges we face, to contain and direct the forces shaping the world and to deliver prosperity, security and success for all our people.

This week I am visiting three countries – South Africa, Nigeria and Kenya – that I regard as key partners in achieving this goal. With thriving democracies, strong international ties, including through the Commonwealth, and fast-changing economies, they are typical of 21st century Africa. An Africa very different to the stereotypes that dominated previous centuries, and that some people still believe even today.

In 2018, five of the world’s fastest-growing economies are African. The continent’s total GDP could well double between 2015 and 2030. By 2050, a quarter of the world’s population and a quarter of the world’s consumers will live here.

From the Western Cape to the Mediterranean come stories of increasing stability, growth, innovation and hope.

South Africa, for so long blighted by the evils of Apartheid, is free, democratic, and home to one of the continent’s largest economies.

In Cote D’Ivoire, United Nations peacekeepers have gone home and GDP is growing three times faster than in Europe.

And Ethiopia – for a generation of British people often associated only with famine – is fast becoming an industrialised nation, creating a huge number of jobs and establishing itself as a global destination for investment.

Yet, in a situation familiar to nations around the world, progress has not been uniform.

As well as emergent democracies and growing economies, Africa is home to the majority of the world’s fragile states and a quarter of the world’s displaced people.

Extremist groups such as Boko Haram and al-Shabab are killing thousands. Africa’s ocean economy – three times the size of its landmass – is under threat from plastic waste and other pollution.

Most of the world’s poorest people are Africans. And increasing wealth has brought rising inequality, both between and within nations. For example, much of Nigeria is thriving, with many individuals enjoying the fruits of a resurgent economy. Yet 87 million Nigerians live on less than $1.90 a day – making it home to more very poor people than any other nation in the world.

Achieving not just growth but inclusive growth is a challenge faced by governments in the UK, Europe, North America and beyond. And as African economies become more successful it is an issue that is being confronted here too.

Because, in the years ahead, demographic change will present further economic challenges and opportunities for this continent. Before arriving here this morning I visited the ID Mkize Secondary School in Gugulethu. The teenagers I met there were an inspiration, full of ideas and enthusiasm about their own futures and full of pride about the future of their country and their continent.

It’s an outlook they share with so many Africans, 60 per cent of whom are aged under 25. Such a young population represents a phenomenal level of human capital and potential. With their innovation, dynamism and creativity, Africa’s young people could enrich not only this continent but the world economy and society at large.

But to make the most of this promise it needs to be properly harnessed. Between now and 2035, African nations will have to create 18 million new jobs every year just to keep pace with the rapidly growing population. That’s almost 50,000 new jobs every single day, simply to maintain employment at its current level.

That would be huge challenge for any continent, let alone one where economic growth is still fragile and markets are still developing.

And it is indicative of the need to redouble our efforts to ensure the forces shaping our world deliver for all our people. Because the challenges facing Africa are not Africa’s alone. It is in the world’s interest to see that those jobs are created, to tackle the causes and symptoms of extremism and instability, to deal with migration flows and to encourage clean growth.

If we fail to do so, the economic and environmental impacts will swiftly reach every corner of our networked, connected world. And the human impacts – from a loss of faith in free markets and democracy as the best way to secure global growth and human rights, to greater conflict and an increased susceptibility to extremism – will be similarly global.

That is why I want to create a new partnership between the UK and our friends in Africa, one built around our shared prosperity and shared security.

As Prime Minister of a trading nation whose success depends on global markets, I want to see strong African economies that British companies can do business with in a free and fair fashion. Whether through creating new customers for British exporters or opportunities for British investors, our integrated global economy means healthy African economies are good news for British people as well as African people.

That’s why I’m delighted that we will today confirm plans to carry over the European Union’s Economic Partnership Agreement with the Southern African Customs Union and Mozambique once the EU’s deal no longer applies to the UK.

As a Prime Minister who believes both in free markets and in nations and businesses acting in line with well-established rules and principles of conduct, I want to demonstrate to young Africans that their brightest future lies in a free and thriving private sector. One driven and underpinned by transparency, high standards, the rule of law and fairness. Only in such circumstances can innovation truly be rewarded, the potential of individuals unleashed, and societies provided with the opportunities they want, need and deserve.

And as Prime Minister of a global nation, I’m all too aware that our domestic security is reliant on stability worldwide, not just in our immediate neighbourhood. From reducing drivers of illegal migration to denying refuge to terrorists who would strike our shores, in 2018 African and British security are inextricably linked and mutually dependent. That’s one of the reasons why I continue to support calls for a permanent African presence on the UN Security Council.

So of course there is an element of national self-interest in what I’m proposing. I want to do what’s right for my country, just as President Ramaphosa wants what’s best for South Africa.

And I see no distinction between national self-interest and global co-operation. For when the multilateral system works, it does so on behalf of nation states and our people, allowing us to harness the best we each have to offer, preventing the large dominating the small, and reinforcing fairness, transparency and the rule of law.

It is not about extending geopolitical influence or creating lopsided dependent relationships. It is about the UK seeking to work more closely with the more than 50 nations of Africa to deliver our shared security and prosperity, and through this strengthening a global system that is capable of delivering lasting benefits for all.

At the very heart of that partnership should be job creation. Every African leader I speak to identifies jobs as the number one demand of their people and their greatest political priority. Indeed, it is also at the centre of my agenda in the UK.

It is the private sector that is the key to driving the growth that will deliver those jobs – transforming labour markets, opening up opportunity and unleashing entrepreneurial spirit. And the UK has the companies that can invest in and trade with Africa to do just this.

However, for a variety of reasons the private sector has not yet managed to deliver the jobs and investment that many African nations need.

So I want to put our development budget and expertise at the centre of our partnership as part of an ambitious new approach – and use this to support the private sector to take root and grow.

And I can today announce a new ambition: by 2022, I want the UK to be the G7’s number one investor in Africa, with Britain’s private sector companies taking the lead in investing the billions that will see African economies growing by trillions.

We have the tools to do so. The City of London makes the UK the unrivalled global hub for international investment, with more than £8 trillion of assets under management. We are home to cutting-edge science and technology and world-class defence, diplomacy and development. We are a trusted and trustworthy partner: our legal system is second to none, including some of the toughest anti-corruption laws in the world. Where our companies fall short, they are held to account, in the courts if necessary. And our commitment to free and open trade under the rules-based order means our international partners know they will be treated fairly.

So a driving focus of our development programme will be to ensure that governments in Africa have the environment, knowledge, institutions and support to attract sustainable, long-term investments in the future of Africa and Africans.

And to help bring those investments about, I can today announce an additional £4 billion programme of UK investment in African economies that will pave the way for at least another £4 billion of private sector financing.

This includes, for the first time, an ambition from the UK government’s Development Finance Institution, CDC, to invest £3.5 billion in African nations over the next four years. And next year London will host an Africa Investment Summit, helping investors and African governments forge closer ties with one another.

And because markets and economies need people as well as capital, we will also be sharing our expertise – supporting partner countries in developing their business environments and institutions, integrating into global value chains, building ties with investors and tackling barriers to growth.

To do so, we will radically expand the UK government’s presence in Africa, opening new missions and bringing in trade experts, investment specialists, and other policy experts.

We will continue to invest in the human capital that underpins future prosperity, ensuring that young African men and women have access to the quality education, healthcare and skills they need to fulfil their potential.

And we will use our influence and global standing to encourage other developed nations, and the global institutions of which we are a leading member, to take the same approach.

The ability to do this – to bring so much more to the table than just government funding – is what marks out the UK’s development programme as so effective.

Aid is a crucial part of the equation, but it is accompanied by our ability to leverage huge sums of private sector investment from our capital markets. By our world-class professional services. By our unrivalled expertise in financial services and education. By our investment in science and research and the experience of some of the world’s most innovative companies.

And it is all underpinned by our respected legal system, regulatory standards and values: British investors respect ethical practices, comply with local laws, contribute to local economies and build long-term local capability.

So while we cannot compete with the economic might of some foreign governments investing in Africa, what we can offer is long-term investment of the very highest quality and breadth. Something that will deliver more for Africans for longer, and which can only be achieved when the government and private sector work together.

At the same time, investment cannot be attracted nor growth achieved in the absence of security and the stability it brings. So, we also need to target our development assistance to build that stability and tackle the drivers of fragility.

By 2030, 80 per cent of the world’s extreme poor will live in fragile states. Even in countries considered relatively stable and prosperous, pockets of fragility persist.

The UK is already providing support for African governments that are meeting this challenge head-on. Nigerian troops on the frontline against Boko Haram have received specialist training from Britain. Counter-terror operations in Mali are being supported by British Chinook helicopters. British troops in Kenya have trained African Union peacekeepers heading for Somalia, while also working with international partners to reform the Somalian security forces for the long-term.

UK law enforcement works hand in hand with their counterparts across Africa to tackle the destabilising menace of organised crime, from people traffickers to drug smugglers.

But the answer to security challenges is not purely military or operational – it is also political. The new partnership I am proposing means working with African leaders who are driving progress, taking on the political challenges and vested interests to ensure that benefits flow to all their people. And it means building strong institutions, and helping to build trust between those institutions and the people who are governed by them.

Because it is from those institutions – the building blocks of nation states – that all the benefits I have described today ultimately flow. Without the stability and certainty provided by reliable legal systems, enforceable contracts, recognised standards and so on, it is impossible for responsible private sector companies to make long-term investments. It is impossible for economies to create sufficient numbers of skilled, jobs. And growth cannot be fair and inclusive if markets, whether domestic or international, are not governed by transparent and effective rules that are actively enforced.

This is particularly important in the fight against corruption and dirty money, both of which have the potential to push development off course by undermining the rule of law and diverting money out of the economy. That’s why, later this week, the UK will be signing a new agreement to repatriate huge sums of money that have been illegally removed from Kenya – allowing this money to be returned to its rightful owners and invested in the future of their country.

And we must also support governments as they work to ensure development is not stalled by other threats. This includes boosting resilience against climate change and tackling demographic challenges by empowering women and girls with access to safe, voluntary modern family planning, enabling access to education and skills.

In setting out this new partnership with Africa, I am making a broader proposition for how we will use our development assistance across the world, led by my excellent International Development Secretary Penny Mordaunt.

And as we reorient our development programme, I want to be clear: foreign aid works. Since 2015, UK aid in countries around the world has paid for more than 37 million children to be immunised, saving more than 600,000 lives. We’ve helped almost 11.5 million young people get an education, and given more than 40 million people access to clean water or proper sanitation. As I stand here today, people in the Democratic Republic of Congo are being treated with an Ebola vaccine developed with support from the UK.

The UK’s role in international development is something of which I am immensely proud, as I believe the nation as a whole should be. We will remain a global champion for aid spending, humanitarian relief and international development. We will continue our commitment to spend 0.7 per cent of gross national income on official development assistance. And we will not falter in our work to deliver the Sustainable Development Goals.

But I am also unashamed about the need to ensure that our aid programme works for the UK. So today I am committing that our development spending will not only combat extreme poverty, but at the same time tackle global challenges and support our own national interest. This will ensure that our investment in aid benefits us all, and is fully aligned with our wider national security priorities.

In practice, this will mean helping fast-growing frontier markets like Côte d’Ivoire and Senegal to sustain their development progress and create opportunities for investors, including British companies.

It will also mean supporting countries and societies on the front line of instability in all of its forms. So we will invest more in countries like Mali, Chad and Niger that are waging a battle against terrorism in the Sahel – including by opening new embassies in Niger and Chad and having a much larger presence in Mali.

We will do more with countries like Jordan, who are facing the threat of Daesh’s dispersal and the burden of the tragic conflict on their border with Syria, and to reinforce democracies facing state-based threats, as we recently did through our Western Balkans summit.

We will use our aid programme to support a major new crack down on illicit finance and organised crime, deploying expertise in financial centres around the world and increasing our work with law enforcement to return more of the billions of dollars that have been stolen from countries in Africa and elsewhere.

And we will invest more resources into countering illegal migration, modern slavery and trafficking in people.

These new priorities will represent a fundamental strategic shift in the way we use our aid programme, putting development at the heart of our international agenda – not only protecting and supporting the most vulnerable people but bolstering states under threat, shaping a global economy that works for everyone, and building co-operation across the world in support of the rules-based system.

We will use our future spending plans to set out these proposals in more detail.

True partnerships are not about one party doing unto another, but states, governments, businesses and individuals working together in a responsible way to achieve common goals.

Delivering such long-term success will not be quick or easy. But I am committed to Africa, and committed to using every lever of the British government to support the partnerships and ideas that will bring benefits for generations to come.

When President Mandela addressed the Cape Town crowds in 1994, he spoke not only of the immense challenge facing South Africa, but also of his certainty that the people of this country would rise to meet it.

As the world once again faces great uncertainties, I am confident that all our peoples can rise to the moment. That, together, we will tip the balance of change from challenge to opportunity. And that – as friends, partners and equals – we will secure a more prosperous future for all our people.

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New UK aid package will “stop dirty money in its tracks” and recover millions of pounds for developing countries

A series of major new UK aid programmes will help bring criminals to justice and recover millions of pounds of illegal assets in developing countries, International Development Secretary Penny Mordaunt has announced.

Illicit finance sees “dirty money” diverted away from people in poor countries to individuals involved in crime, terrorism and fraud. This not only harms economies and legitimate financial sectors, but also erodes the confidence of potential investors.

The package, announced as Prime Minister Theresa May visits Kenya, will:

  • create new centres of British expertise in major financials hubs to tackle financial crime more effectively;
  • strengthen efforts in southern and eastern Africa to recover illegal money flows from crime, fraud and corruption through the courts;
  • support Kenyan authorities to bring people committing financial crimes to justice by helping to identify proceeds of crime and seizing criminal property;
  • train and mentor law enforcements officials in southern and eastern Africa to improve criminal justice systems by tightening legislation and strengthen investigation techniques, which will help to build their capacity to clamp down on serious organised crime, ranging from drugs and people trafficking to rhino and elephant poaching; and
  • make use of British asset recovery experts by connecting them with counterparts across the globe.

During the visit, Minister for Africa Harriett Baldwin signed a new agreement with the Kenyan government to return stolen and corrupt funds that have been moved out of Kenya and are hidden in banks in the UK.

All stolen funds found and returned to Kenya will be used exclusively for development projects, in sectors including education and health. This includes over £3.5 million in proceeds of crime seized by courts in Jersey.

This agreement builds on our commitment made at the 2016 London Anti-Corruption Summit to stand shoulder to shoulder with countries who are committed to tackling corruption.

International Development Secretary Penny Mordaunt said:

Financial crime hurts the world’s poorest the most, taking money away from schools, hospitals and other vital services in developing countries. Today’s UK aid package will stop dirty money in its tracks and send a message to crooks that we are clamping down on spaces for them to hide their illegally gained wealth.

Even small decreases in illegal financial flows will give developing countries millions of pounds more to invest in their economies, helping them to stand on their own two feet and create a more prosperous future.

Disrupting organised global criminals before they can directly threaten the UK is firmly in our national interest, and will lead to better trade links with African countries by reassuring British businesses that they can invest with confidence.

The new commitments build on the UK’s existing leadership in tackling illicit financial flows, and over the last three years this has supported African law enforcement officials to develop skills which helped them to seize, confiscate or preserve over $76 million of illegal assets in 2017.

Notes to editors

  • The African Union and United Nations High Level Panel on Illicit Financial Flows (IFFs) from Africa claim that over the last 50 years, Africa is estimated to have lost in excess of $1 trillion in IFFs.

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Historical background information on nationality

Historical background information on nationality

British nationality remains one of the most complex part of British law, due to changes in the Nationality Law’s as well as countries gaining their independence.

The history of British nationality law falls into 4 periods, which are marked by key pieces of legislation:

  • before 1915;
  • between 1915 and 1948;
  • between 1949 and 1983;
  • after 1983.

The 1948 Act, which came into force on 1 January 1949, introduced the status of citizen of the UK and Colonies (CUKC) whilst retaining the term British subject to cover every citizen of a Commonwealth country, including the UK and the Colonies. Between 1947 and 1951, the 9 Commonwealth countries which became independent (for nationality purposes) on 1 January 1949 introduced their own citizenship laws.

The dates of the citizenship laws were as follows:

  • Australia – 26 January 1949.
  • Canada – 1 January 1947.
  • Ceylon – 1 January 1949.
  • India – 26 January 1950.
  • Newfoundland – 31 March 1949.
  • New Zealand – 1 January 1949.
  • Pakistan – 13 April 1951.
  • South Africa – 2 September 1949.
  • Southern Rhodesia – 1 January 1950.
  • UK – 1 January 1949.

Persons closely connected with the UK or existing British territories remained British subjects but acquired the additional status of CUKC. In some cases, both CUKC and the citizenship of one or more independent Commonwealth countries was acquired.

For example a person to acquire British nationality by descent, the following is applicable:

Citizenship by descent

(1)Subject to the provisions of this section, a person born after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by descent if his father is a citizen of the United Kingdom and Colonies at the time of the birth:

Provided that if the father of such a person is a citizen of the United Kingdom and Colonies by descent only, that person shall not be a citizen of the United Kingdom and Colonies by virtue of this section unless—

(a)that person is born or his father was born in a protectorate, protected state, mandated territory or trust territory or any place in a foreign country where by treaty, capitulation, grant, usage, sufferance, or other lawful means, His Majesty then has or had jurisdiction over British subjects ; or

(b)that person’s birth having occurred in a place in a foreign country other than a place such as is mentioned in the last foregoing paragraph, the birth is registered at a United Kingdom consulate within one year of its occurrence, or, with the permission of the Secretary of State, later ; or

(c)that person’s father is, at the time of the birth, in Crown service under His Majesty’s government in the United Kingdom ; or

(d)that person is born in any country mentioned in subsection (3) of section one of this Act in which a citizenship law has then taken effect and does not become a citizen thereof on birth.

(2)If the Secretary of State so directs, a birth shall be deemed for the purposes of this section to have been registered with his permission notwithstanding that his permission was not obtained before the registration.

The policy also looks at legitimising the birth, as the BNA Act 1948 states the following:

Legitimated children

(1)A person born out of wedlock and legitimated by the subsequent marriage of his parents shall, as from the date of the marriage or of the commencement of this Act, whichever is later, be treated, for the purpose of determining whether he is a citizen of the United Kingdom and Colonies, or was a British subject immediately before the commencement of this Act, as if he had been born legitimate.

(2)A person shall be deemed for the purposes of this section to have been legitimated by the subsequent marriage of his parents if by the law of the place in which his father was domiciled at the time of the marriage the marriage operated immediately or subsequently to legitimate him, and not otherwise.

If you need specialist legal advice, contact us on 0207 237 3388 or email us at info@icslegal.com

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Baigazieva v Secretary of State for the Home Department [2018] EWCA Civ 1088

Neutral Citation Number: [2018] EWCA Civ 1088

Case No: C9/2017/3535

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)

The Royal Courts of Justice
Strand, London, WC2A 2LL

Friday, 20 April 2018

Before:

LORD JUSTICE SINGH

– – – – – – – – – – – – – – – – – – – – –

Between:

BAIGAZIEVA
Appellant
– and –
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

– – – – – – – – – – – – – – – – – – – – –

(DAR Transcript of WordWave International Ltd trading as DTI
8th Floor, 165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 704 1424
Web: www.DTIGlobal.com Email: TTP@dtiglobal.eu
(Official Shorthand Writers to the Court)

– – – – – – – – – – – – – – – – – – – – –

The Appellant did not appear and was not represented
The Respondent did not appear and was not represented

– – – – – – – – – – – – – – – – – – – – –

Judgment (Approved)

LORD JUSTICE SINGH:

1.     Introduction

Because of the relatively unusual procedural history of the case, I will first explain the circumstances which have led to the court giving judgment in this case today although the parties have agreed a consent order. After this appeal from the Upper Tribunal (Immigration and Asylum Chamber) (UT) had come to this court, the Secretary of State indicated in a letter dated 26 February 2018 that she did not wish to contest the appeal. I made directions on 1 March 2018 requesting the Secretary of State to file a brief position statement explaining why she was willing to concede the appeal and what order she proposed as to costs or any other consequential matters. I also gave permission for the appellant to file a brief written response to that document explaining whether it was agreed that the case should be dealt with by a judgment of the court. In accordance with those directions, those parties have filed the relevant documents, for which I am grateful. As the Secretary of State explains in her position statement dated 13 March 2018 at paragraph 24, although the outcome in this particular appeal is the subject of a consent order, it would be in the public interest for the court to give a substantive judgment on the issue of law which arises. The Secretary of State explains that the issue has arisen in several proceedings in recent years without being definitively resolved. She is also concerned that if there were no substantive judgment of this court, then the decision of the UT in the present case might continue to be cited or relied upon. In the appellant’s response to the Secretary of State’s position statement at paragraph 6, it is agreed that it would be in the public interest for this court to give a short judgment on the issue of law which arises. I agree with the submissions which have been made in writing by both parties. In view of the relatively unusual nature of this case, I have come to the view also that it would be in the public interest for this court to deliver a substantive judgment. I proceed to do so. I am grateful to the Secretary of State, who through counsel has filed a very helpful position statement. I draw upon that position statement for the purpose of giving this judgment. I note that the appellant in substance agrees, as is made clear in the response dated 28 March 2018 to which I have referred.

2.     Background

The appellant is an adult female national of Kyrgyzstan. She seeks permission to appeal against the decision of Upper Tribunal Judge Bruce promulgated on 20 September 2017, in which she concluded that the appellant had not retained a right to reside in the United Kingdom as the former spouse of a European Economic Area (“EEA”) citizen. This appeal turns on the correct interpretation of Regulation 10(5) of the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”). On 9 December 2015, when the Secretary of State determined the appellant’s application for a residence permit as a family member with a retained right of residence, the 2006 Regulations were still in force. However, on 1 February 2017 the 2006 Regulations were revoked and replaced by the Immigration (European Economic Area) Regulations 2016 (subject to transitional provisions) (“the 2016 Regulations”). Regulation 10 of the 2016 Regulations corresponds to Regulation 10 of the 2006 Regulations, subject to modest amendments which are immaterial in the present case. The question of interpretation which arises in this case in relation to Regulation 10 of the 2006 Regulations also arises in the same way in relation to Regulation 10 of the 2016 Regulations.

3.     In her position statement, the Secretary of State informs the court that having reviewed the law in the light of this appeal, she has come to the conclusion that UTJ Bruce erred in the approach that she took to Regulation 10(5) of the 2006 Regulations. The Secretary of State now accepts that a third country national, in order to retain a right to reside in the UK in reliance on Regulation 10(5), does not need to show that their former EEA spouse exercised treaty rights as a “qualified person” until the divorce itself. Rather, it is sufficient to show that the former EEA spouse exercised treaty rights until divorce proceedings were commenced.

4.     The relevant law

This case arises from the Directive of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (Directive 2004/38/EC or “the Directive”). Article 13(2) of the Directive provides for third country family members of EU citizens to retain their right to reside in an EU Member State in the event of divorce. Article 13(2) states:

“2. Without prejudice to the second subparagraph, divorce, annulment of marriage or termination of the registered partnership referred to in point 2(b) of Article 2 shall not entail loss of the right of residence of a Union citizen’s family members who are not nationals of a Member State where:

(a) prior to initiation of the divorce or annulment proceedings or termination of the registered partnership referred to in point 2(b) of Article 2, the marriage or registered partnership has lasted at least three years, including one year in the host Member State; or

(b) by agreement between the spouses or the partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has custody of the Union citizen’s children; or

(c) this is warranted by particularly difficult circumstances, such as having been a victim of domestic violence while the marriage or registered partnership was subsisting; or

(d) by agreement between the spouses or partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has the right of access to a minor child, provided that the court has ruled that such access must be in the host Member State, and for as long as is required.

Before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain subject to the requirement that they are able to show that they are workers or self- employed persons or that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements. ‘Sufficient resources’ shall be as defined in Article 8(4).

Such family members shall retain their right of residence exclusively on personal basis.”

5.     When the present appellant’s application for a residence permit was determined, Article 13(2) had been transposed into domestic law by Regulation 10 of the 2006 Regulations. Regulation 10 so far as material provided:

“10.—(1) In these Regulations, ‘ family member who has retained the right of residence’ means, subject to paragraph (8), a person who satisfies the conditions in paragraph (2), (3), (4) or (5).

[…]

(5) A person satisfies the conditions in this paragraph if—

(a) he ceased to be a family member of a qualified person on the termination of the marriage or civil partnership of the qualified person;

(b) he was residing in the United Kingdom in accordance with these Regulations at the date of the termination;

(c) he satisfies the condition in paragraph (6); and

(d) either—

(i) prior to the initiation of the proceedings for the termination of the marriage or the civil partnership the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had resided in the United Kingdom for at least one year during its duration;

[…]”

6.     In the 2006 Regulations a “qualified person” meant a person who was an EEA national and in the UK as a jobseeker, worker, self-employed person, self-sufficient person or student (see Regulation 6).

7.     In NA v Secretary of State for the Home Department [2014] EWCA Civ 995, this court referred the following question for a preliminary ruling from the Court of Justice of the European Union (“CJEU”):

“Must a third country national ex-spouse of a Union citizen be able to show that their former spouse was exercising Treaty rights in the host Member state at the time of their divorce in order to retain a right of residence under Article 13(2) of Directive 2004/38/EC? ”

8.     In giving its preliminary ruling, the CJEU reformulated the question to reflect the precise facts of the case before it, which involved domestic violence, and posed the following question:

“… whether Article 13(2)(c) of Directive 2004/38 is to be interpreted as meaning that a third-country national, who is divorced from a Union citizen at whose hands she has been the victim of domestic violence during the marriage, is entitled to retain her right of residence in the host Member State, on the basis of that provision, where the divorce post-dates the departure of the Union citizen spouse from that Member State ”

9.     The answer given by the CJEU to that question was that the EU spouse (the qualified person) must reside in the host Member State “until the date of the commencement of divorce proceedings” if the third country victim of abuse is to be entitled to rely on Article 13(2) (c) (see paragraphs 50 to 51 of its judgment). The CJEU did not suggest that it was necessary for the EU spouse to reside in the host Member State until the divorce itself was granted (in the system of family law in this country, that would be by a court issuing a decree absolute).

10.     In the current proceedings the appellant submits that this reasoning must logically extend to her circumstances. She does not claim a history of domestic violence but states that prior to the initiation of the divorce proceedings in her case, the marriage had lasted at least three years including one year in the host Member State; in other words, she invokes subparagraph (a) of Article 13(2). She submits that in her case also it was sufficient to provide evidence that her spouse was a qualified person up until the date of the commencement of divorce proceedings and that it was not necessary to provide evidence of that qualified person’s status continuing until the date of the decree absolute.

11.     The Secretary of State’s submission

Having reviewed the law again the light of this appeal, the Secretary of State now accepts that there is no principled basis for concluding that the CJEU’s reasoning in NA should not also apply to those who seek to rely on subparagraph (a) of Article 13(2) of the Directive. In NA the CJEU noted when discussing the history of the proposal for the Directive that safeguards were considered necessary “only in the event of final divorce, since, in the event of de facto separation, the right of residence of a spouse who is a third-country national is not at all affected” (see paragraph 47). The CJEU added that “it is apparent from the wording, the context and objectives of Article 13(2) … that the application of that provision, including the right derived from Article 13(2)(c) … is dependent on the parties concerned being divorced” (see paragraph 48).

12.     On one view, it could be said that these passages are in tension with how the CJEU ultimately resolved the question which it had to answer in NA. However, the Secretary of State considers that in these passages the CJEU was distinguishing between, first, the point at which the right to reside is retained pursuant to Article 13(2) (in other words, the event of divorce), and secondly, the criteria that must be met for the retention of the right (in other words, the criteria set out in subparagraphs (a) to (d) of Article 13(2) ). For the right to be retained at the point of divorce when the decree absolute was granted, the CJEU held that it was necessary to show that the EEA spouse was a qualified person when divorce proceedings were commenced. To have identified the commencement of divorce proceedings as the point at which to demonstrate qualified person status was consistent with Article 13(2)(a), which refers to the marriage lasting for at least three years “prior to initiation of the divorce”.

13.     The Secretary of state considers that this distinction between, first, the time when the right is retained, and secondly, the criteria to be met for retention is a complete answer to the reasoning of UTJ Bruce in the present case. The judge’s reasoning had three main elements. First, she relied on the reference in Regulation 10(5)(a) to the status of a family member of a qualified person ceasing “on the termination of the marriage” (see paragraph 20 of her determination). Secondly, she stated that “there must logically come a point when rights of residence that were once ‘derived’ become ‘retained'”, citing the CJEU’s judgment in Diatta v Land Berlin (C-267/83, [1985] ECR 567). The judge said that it was difficult to understand why the appellant would need the legal safeguard of Article 13(2)(a) if she still enjoyed the benefits of Article 7(1) as a family member (see paragraph 21). Thirdly, the initiation of divorce proceedings does not provide “a sufficiently clear basis upon which to confer a permanent right of residence”. The judge gave the example of a couple who separate but are then reconciled (see paragraph 22).

14.     In the Secretary of State’s submission, the answer to all of these points is to be found in the distinction which the CJEU drew in NA between, first, the point at which the right of residence is retained, and secondly, the criteria to be met for that to happen. The reference in Regulation 10(5)(a) to family member status ceasing “on the termination of the marriage” and the ratio in Diatta are consistent with paragraphs 47 to 48 of the CJEU’s judgment in NA. On this analysis, it is not a question of the third country national “needing” to rely on Article 13(2) while she can still rely on Article 7(1). On this analysis, it is accepted that Article 13(2) does not take effect until the point of divorce. However, this does not mean that the third country national has to show that the qualified person status of her former spouse continued up until that point. There is no warrant, submits the Secretary of State, in the language of Article 13(2)(a) for that conclusion. On the contrary, she submits, the wording of that provision (“prior to initiation of the divorce”) points to the co ntrary construction.

15.     The Secretary of State also submits that UTJ Bruce was wrong to be concerned that the initiation of divorce proceedings is not a sufficiently clear juncture at which to allow the right of residence to be retained. She submits that that is not the effect of the CJEU’s judgment in NA when correctly understood. She submits that UTJ Bruce wrongly conflated the retention of the right of residence with the criteria that must be met for its retention. Moreover, contrary to the UTJ’s view, there is no great evidential difficulty in determining whether divorce proceedings had been in initiated or not. This is a simple question of fact to be determined on the evidence of a particular case.

16.     On this analysis, the Secretary of State submits that Regulation 10(5) is not only a faithful transposition of Article 13(2)(a) of the Directive but captures more clearly the distinction to be drawn according to the decision of the CJEU in NA between the cessation of family member status at the point of divorce (Regulation 10(5)(a)) and the criteria to be met for the right of residence to be retained at that point (Regulation 10(5)(c)). The Secretary of State has reached this position based mainly on a further review of the CJEU’s judgment in NA, but she submits that her position is also consistent with, first, the approach taken by the CJEU in Singh & Ors v Ministry for Justice and Equality (C-218/14, ECLI:EU:C:2015:476), which the appellant cites at paragraphs 6 to 9 of her grounds of appeal; and secondly, this court’s summary of Singh at paragraph 13 of Ahmed v Secretary of State for the Home Department [2017] EWCA Civ 99, which is referred to at paragraph 18 of the appellant’s grounds of appeal.

17.     Finally, the Secretary of State submits that her analysis is also consistent with the judgment of the Irish High Court in Khalid Lahyani v Minister of Justice and Equality [2013] IEHC 176 at paragraphs 16 to 17.

18.     In conclusion, therefore, the Secretary of State accepts that the weight of judicial consideration of Article 13(2) of the Directive is against the approach which was taken by UTJ Bruce in the present case. The Secretary of State has considered whether the CJEU’s judgment in NA still leaves sufficient uncertainty so as to warrant an invitation to this court to make a further reference for a preliminary ruling to deal definitively with the wider question which was originally put by this court to the CJEU in NA. However, the Secretary of State has concluded that it is not necessary to make this invitation because she is satisfied that the CJEU’s judgment in NA provides sufficient guidance on the correct approach.

19.     I agree with those submissions. I also agree that it is not necessary for this court to make a further reference to the CJEU for a preliminary ruling.

20.     Disposal

In the light of the position statement to which I have referred, which in substance is agreed by the appellant’s representatives, the parties have agreed a draft consent order for the consideration of this court. I am content to endorse the terms of that consent order. Accordingly, for the reasons which have been set out in this judgment, the court makes the following order:

(1) Permission to appeal is granted.

(2) The appeal is allowed.

(3) The Upper Tribunal’s decision in these proceedings dated 20 September 2017 is set aside.

(4) The First-tier Tribunal’s decision in these proceedings dated 24 November 2016 is restored.

(5) The respondent’s decision dated 9 December 2015 refusing the appellant’s application for a residence permit as a family member with a retained right of residence is quashed.

(6) The respondent is to issue a residence permit to the appellant as a family member with a retained right of residence in the United Kingdom.

(7) The respondent is to pay the appellant’s reasonable costs, to be assessed if not agreed.

Orde r: Appeal allowed

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Statement of changes to the Immigration Rules: HC1154, 15 June 2018

Statement of changes to the Immigration Rules: HC1154, 15 June 2018

The purposes of the main changes are to:

  1. Make provision for returning residents, including those affected by Windrush.
  2. Create a route for Afghan locally engaged staff to apply for settlement in the UK and to extend the ex-gratia redundancy scheme by six years, to include those made redundant on or after 1 May 2006.
  3. Create a new settlement route for Turkish ECAA business persons, workers and their family members.
  4. Create a new form of leave for people, transferred to the UK under the Dubs amendment, who do not qualify for international protection.
  5. Exempt all doctors and all nurses from the annual Tier 2 (General) limit.  Create new provisions in the Tier 1 (Exceptional Talent) category.

The changes to Part 7 set out in paragraph 7.2, to Part 8 set out in paragraphs 8.1 and 8.2, to Part 11 set out in paragraph 11.1, to Appendix A set out in paragraphs A14 to A17 and A21 to A25, to Appendix ECAA set out in paragraph ECAA1., to Appendix FM set out in paragraphs FM1. to FM4. and to Appendix FM-SE set out in paragraphs FM-SE1. and FM-SE2. of this statement shall take effect from 6 July 2018 and will apply to all decisions made on or after that date.

The other changes set out in this statement shall take effect on 6 July 2018. However, in relation to those changes, if an application has been made for entry clearance or leave to enter or remain before 6 July 2018, the application will be decided in accordance with the Immigration Rules in force on 5 July 2018.

Changes relating to returning residents

The returning residents rules set out the provisions relating to persons who have acquired indefinite leave to enter or remain in the UK and who are returning to the UK following an absence overseas. This could also include those returning to the UK, under these provisions, as part of the Windrush policy. Changes have been made to clarify the distinction between those who have been absent from the UK for less than 2 years and so retain their indefinite leave status, from those whose indefinite leave has lapsed due to an absence of more than 2 years. Those in the latter category must now apply for entry clearance and demonstrate they have strong ties to the UK in order to be issued indefinite leave to enter.

Changes relating to leave to enter or stay in the UK

A minor change is being made to the wording of paragraph 39E (exceptions for overstayers) because, as currently worded, the paragraph would permit some applicants to make one additional application, which is not the policy intention.

39E. This paragraph applies where:

  1. (1) the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or
  2. (2) the application was made:
    1. (a) following the refusal of a previous application for leave which was made in-time or to which sub-paragraph (1) applied; and
    2. (b) within 14 days of:
      1. (i) the refusal of the previous application for leave; or
      2. (ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or
      3. (iii) the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or
      4. (iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.

Applicants should not be able to make any additional applications. The change will close this discrepancy.

Changes relating to refusal of entry clearance or leave to enter the United Kingdom

Paragraph 320(7BB) sets out the specific circumstances in which previous periods of overstaying should be disregarded. A minor change is being made to the wording of this rule to clarify that overstaying, pending the determination of any out of time application made on or after 24 November 2016 to which paragraph 39E applies, will also be disregarded for the purposes of calculating the period of overstaying in paragraph 320(7B)(i).

Changes relating to immigration bail

The Government commenced Schedule 10 to the Immigration Act 2016 on 15 January 2018. This introduced a new provision of “immigration bail” and repealed the existing powers of temporary admission and temporary release, as well as immigration bail under Schedule 2 of the Immigration Act 1971.

The change in this Statement of Changes relates to the rule concerning applications for leave to enter or remain, as the child of a person with limited leave to enter or remain in the United Kingdom. Other rules changes have already been made to those rules relating to applications for entry clearance, leave to enter or remain, further leave or indefinite leave in various scenarios. The common factor in each case is the relevance of the applicant having last been granted, or being currently on, temporary admission or temporary release.

Transitional provisions provide that those who were granted temporary admission or temporary release before 15 January 2018, and whose grant remained extant on that date, are automatically treated as if they had been granted immigration bail under Schedule 10 to the 2016 Act. After that date, temporary admission and temporary release can no longer be granted, and immigration bail is granted instead.

However, for some time after the commencement of the provisions in Schedule 10 there may be individuals whose earlier grant of temporary admission or temporary release is relevant to their application. Accordingly, these references in the rules are preserved to ensure there is no prejudice caused by the changes.

Changes relating to Tier 1 of the Points-Based System

Tier 1 of the Points-Based System caters for high value migrants. The current rules contain four active categories: Tier 1 (Exceptional Talent), Tier 1 (Investor), Tier 1 (Entrepreneur) and Tier 1 (Graduate Entrepreneur). They also include the Tier 1 (General) category, which was closed to new applicants in April 2011 but remained open for settlement applications until 6 April 2018.

Tier 1 (Exceptional Talent)

The Tier 1 (Exceptional Talent) category is for talented individuals in the fields of science, humanities, engineering, the arts and digital technology to work in the UK without the need to be sponsored for employment in a specific post. Applicants must be endorsed by a Designated Competent Body. The following changes are being made to this category:

The endorsement of arts applicants is being widened to include those in the fashion industry who are operating leading designer fashion businesses. These applicants will be assessed by the British Fashion Council operating within the endorsement remit of Arts Council England.

Other changes are being made to the criteria for endorsement by each Designated Competent Body, at those bodies’ requests. These include changes to the evidential requirements for applicants holding a peer-reviewed research fellowship; changes to the criteria and list of eligible awards for applicants in film and television; and changes for digital technology applicants to reflect the rebranding of “Tech City UK” as “Tech Nation”.

Amendments are being made so that endorsements for Croatian nationals no longer count against the number of allocated endorsements available to each Designated Competent Body. This is because Croatian nationals will no longer need to apply for work authorisation in this category, owing to the lifting of transitional controls on the work rights of Croatian nationals on the occasion, this July, of the fifth anniversary of Croatia’s accession to the EU in July 2013.

Tier 1 (Investor)

The Tier 1 (Investor) category is for high net worth individuals making an investment of at least £2 million in the UK. The following changes are being made to this category:

  1. Applicants are required to maintain their investments. A change is being made to clarify that, while applicants may withdraw interest and dividend payments generated by their qualifying investments from their portfolios, they may not do so if these were generated before the applicant purchased the portfolio.
  2. As evidence of their investment, applicants must currently submit portfolio reports signed off by a financial institution regulated by the Financial Conduct Authority. A technical change is being made to require institutions to confirm that the funds have only been invested in qualifying investments, and that no loan has been secured against those funds. This change will put a further obligation on financial firms to scrutinise the suitability of applicants’ investments, in addition to their own due diligence.

Tier 1 (Entrepreneur)

The Tier 1 (Entrepreneur) category caters for applicants coming to the UK to set up, take over, or be involved in the running of a UK business. Applicants must have either £200,000 or £50,000 funds (depending on the circumstances) to invest in their businesses.

Two amendments are being made to:

  • make clear where letters from legal representatives confirming signatures are required; and
  • restore a provision for accountants to confirm that investment has been made on an applicant’s behalf.

Changes relating to Tier 2 of the Points-Based System

Tier 2 of the Points-Based System caters for migrant workers with an offer of a skilled job from a licensed employer. There are four categories: General, IntraCompany Transfer (ICT), Minister of Religion and Sportsperson.

  • The Tier 2 (General) category is the main immigration route for UK employers seeking to recruit non-EEA skilled workers. It is subject to an annual limit of 20,700 places, divided into monthly allocations.
  • Changes are being made to exempt doctors and nurses from the Tier 2 (General) limit. This is in response to the particular shortages and pressures facing the NHS at the current time, and the fact that the limit has been oversubscribed in each month since December 2017. The changes will mean that health sector employers will be able to sponsor doctors and nurses without requiring restricted Tier 2 certificates of sponsorship or putting pressure on the limit. This will free up places within the limit for other key roles which contribute to the UK economy and other public services. The changes will be kept under review.
  • In all other respects, the change preserves the existing arrangements. This means that all applications for nurses, and all applications for doctors not currently recognised on the Shortage Occupation List, will continue to be required to demonstrate that they have met the requirements of the Resident Labour Market Test. Doctors currently recognised on the Shortage Occupation List will continue to be exempt from the RLMT.

The following additional changes are being made to Tier 2:

  1. Amendments are being made so that applications for Restricted Certificate of Sponsorship for Croatian nationals no longer count towards the Tier 2 limit. This is because Croatian nationals will no longer need to apply for work authorisation in this category, owing to the lifting of transitional controls on the work rights of Croatian nationals on the occasion of the fifth anniversary of Croatia’s accession to the EU.
  2. From 14 June 2012, the skills threshold for jobs sponsored under Tier 2 (General) and Tier 2 (ICT) increased from Regulated Qualifications Framework (RQF) level 4 to RQF level 6. The transitional arrangements, for those previously in these routes to extend their stay, are no longer needed and are being closed. Provisions for these migrants to apply for indefinite leave to remain are being retained. The Government signalled in March 2016 that this closure would take place in July 2018, and set this out in the published guidance for Tier 2 sponsors.
  3. A change is being made to expand the restriction on Tier 2 migrants holding more than 10% of shares in their sponsor so as also to restrict such ownership being held indirectly, such as via another corporate entity.
  4. A change is being made to the evidential requirements for Tier 2 migrants applying for settlement, who have been absent from work on maternity, paternity, shared parental or adoption leave. These applicants are additionally required to provide evidence of the underlying adoption or birth that necessitated their leave. These changes bring the requirements in line with similar requirements elsewhere in the Immigration Rules.
  5. References to Find a Job, the service replacing Universal Jobmatch, have been included for the Resident Labour Market Test.
  6. Minor drafting corrections are being made to correct the Standard Occupational Classification (SOC) code used for midwives. These corrections have no impact on the way applications for midwives are considered.

Changes to indefinite leave to remain in work categories

Applicants for indefinite leave to remain must complete a continuous period (usually 5 years) with valid leave and absences from the UK of no more than 180 days in any 12-month period during that time. The following changes are being made to these provisions:

A transitional arrangement is being applied, to ensure that the new absences calculation rule, effective from 11 January 2018 (in HC 309), does not adversely affect applicants whose absences occurred during leave granted under Rules in place prior to that date.

Provisions setting out when an applicant’s continuity of leave is not broken are currently more generous for in-country applications than for entry clearance applications (where applicants have otherwise had continuous stay in the UK but happen to be overseas when their previous leave expires). Changes are being made to bring the entry clearance provisions into line with the (more generous) in-country provisions.

Changes relating to short-term students

Short term study (STS) is the route used to study in the UK for up to 6 months (or up to 11 months when studying an English language course). A clarification has been added to A57E to confirm that short-term students who receive a visa for a course of study between 6 and 11 months, will not have ‘accompanied’ or ‘unaccompanied’ stated on their vignette.

Paragraph A57F has been amended to reflect that short-term students are subject to Part 15 of the Immigration Rules, which specifies that migrants studying certain subjects, such as aerospace engineering, must obtain an ATAS (Academic Technology Approval Scheme) certificate, prior to commencing their studies.

Changes relating to Tier 4 of the Points-Based System

Tier 4 of the Points-Based System is the route used by non-EEA nationals wishing to study in the UK. Tier 4 is comprised of two categories: Tier 4 (General) and Tier 4 (Child).

  1. All references to the Higher Education Funding Council for England (HEFCE) have been replaced by references to the Office for Students. This reflects the fact that, from 3 April 2018, the Office for Students replaced HEFCE as the body with responsibility for regulating higher education providers in England.
  2. Paragraph 6 of the Introduction to the Immigration Rules has been updated with a new definition for a state-funded schools, academies and independent schools, to ensure all types of schools across the UK are captured adequately.
  3. Consequential to the preceding change, references to “an Academy or a school maintained by a local authority” have been replaced with “a state funded school – except for voluntary grammar schools with boarding in Northern Ireland – and academies”.
  4. Amendments are being made to the Tier 4 conditions of leave to reflect the changes to Part 15 of the Immigration Rules, whereby students studying or undertaking research in certain risk subjects, such as aerospace engineering, will be required to obtain an ATAS certificate, irrespective of the length of the course or research period.
  5. An amendment is being made to the Tier 4 (General) conditions of leave to allow students to study on a study abroad programme, regardless of when the programme is added to their course.
  6. As independent schools are now only permitted to sponsor Tier 4 (Child) students, paragraphs 245ZZB(c)(iv)(4) and 245ZZD(c)(iv)(4) have become obsolete as they refer to working rights of Tier 4 (Child) students employed as student union sabbatical officers. These are therefore being deleted.
  7. The minimum length that a postgraduate course needs to be in order for a Tier 4 Migrant to be eligible to bring dependants with them to the UK is being reduced from 12 months to 9 months.
  8. On 11 January 2018, the Tier 4 Guidance for Educators, published on the GOV.UK website, was updated to allow higher education institutes to enter partnerships with research institutes. The research institute in such a partnership must either be:
  • listed as in receipt of UK Research and Innovation and its Councils (formerly Research Councils UK) grant funding, or
  • listed as a research institute with which the Research Councils have established a long-term involvement as major funder, and eligible to receive research funding. 7.31. Courses offered under such a partnership must lead to the award of a master’s or PhD level degree.

An addition is being made, to paragraph 120(a) of Appendix A to the Immigration Rules, to specify that where a Certificate of Acceptance for Studies (CAS) is issued for study on such a course, the CAS will only be valid if the course is accredited as leading to an accredited qualification at the required level.

Paragraphs 120-SD and 125-SD of Appendix A set out the types of specified documents which are acceptable as evidence of a Tier 4 student’s previous qualifications. Currently these are limited to original certificates of qualification, transcripts of results, original references (or a copy, together with an original letter from the Tier 4 sponsor confirming it is a true copy of the reference they assessed).

Due to the increasing trend towards digital results, the Government is widening the scope of acceptable evidence of previous qualifications so as to include print outs from awarding bodies’ online checking services. However, the Government is reserving the power to see the original certificates of qualification or transcript of results.

Appendix H, which sets out Tier 4 documentary requirements, has been updated to include only countries whose Tier 4 students have met strict risk criteria, including visa nationals for the first time. Another amendment is being made to Appendix H to allow nationals of these countries to benefit from different documentary requirements even if they apply from their country of residence, and not only when they do so from their country of nationality.

Changes relating to Academic Technology Approval Scheme (ATAS) clearance certificates

The ATAS (Academic Technology Approval Scheme) was introduced to help restrict the spread of knowledge and skills that could be used in the proliferation of weapons of mass destruction (WMD).

Part 15 is being amended to delete the reference to “in excess of 6 months”. Students who undertake a period of study or research, of any length, in one of the subjects listed in paragraphs 1 or 2 of Appendix 6 of the Immigration Rules, at an institution of higher education where this forms part of an overseas postgraduate qualification, will be required to obtain an ATAS certificate.

Changes relating to Tier 5 of the Points-Based System

In Appendix N, the ‘Sponsored Scientific Researcher Initiative’ is being deleted. In Appendix N, the ‘UKRI – Science, Research and Academia’ scheme has been added to the list of approved Government Authorised exchange schemes. This scheme replaces the ‘Sponsored Scientific Researcher Initiative’ and provides expanded provisions for enabling overseas researchers to come to the UK, promoting international collaboration, knowledge exchange and skills transfer.

Changes relating to limited leave to enter for relevant Afghan citizens

There are two separate schemes to assist former Locally Engaged Staff in Afghanistan: the ex-gratia redundancy scheme and the Intimidation policy.

  1. The exgratia scheme currently caters for those who were made redundant as a direct consequence of the UK military drawdown, having served for at least a year on the front line. The intimidation policy supports all staff whose safety is threatened in Afghanistan due to their work with the UK, including those who do not qualify under the ex-gratia scheme. The requirements to be met for limited leave under the exgratia scheme are set out in Immigration Rules, but when the schemes were first introduced there was no specific provision covering limited leave for anyone who may be relocated to the UK under the Intimidation policy, or to allow individuals relocated under either scheme to apply for settlement.
  2. That is why new Immigration Rules are being introduced to cover anyone who may be granted limited leave to enter under the Intimidation policy, and to provide a specific route to settlement for relevant Afghan nationals and their immediate family granted leave to enter under Immigration Rules 276BA1 to 276BS1. The new provisions will introduce requirements that must be met for settlement to be granted, and make clear that those who wish to settle here, following a period of limited leave, will be able to do so providing they meet the relevant requirements in the Rules. Those who relocated to the UK will need to make an application for settlement, which will be free of charge, before their period of five years limited leave expires.
  3. The ex-gratia scheme offers relocation in recognition of the commitment, bravery and significant contribution that local staff made whilst working with UK Armed Forces in dangerous and challenging situations. Relocation to the UK is offered as an option to staff who faced particular danger in their role; other staff are offered financial or training packages.
  4. On 11 June, the Defence Secretary, Gavin Williamson, announced plans to expand the ex-gratia relocation scheme to recognise and honour the service of those made redundant before 19 December 2012. To implement this quickly the new Rules also extend the eligibility criteria by six years, which provides for all interpreters who were made redundant, having served for at least a year on the front line, from May 2006, to be eligible to come here along with their immediate family members. Under the Intimidation policy, the Ministry of Defence continues to provide support in Afghanistan, including security advice, financial assistance or relocation to a safer part of the country. In the most serious cases, the Home Office may determine that an Afghan locally engaged staff member is in need of relocation to the UK.
  5. The changes to the Afghan locally engaged staff rules are expected to have a positive effect on those eligible to apply, and to provide clarity on the route to settlement. The new Rules put beyond doubt that those granted limited leave for five years under Immigration Rules 276BA1 to 276BS1, will be able to apply for settlement should they wish to remain in the UK. The Government will also make changes to the Immigration and Nationality (Fees) Regulations at the appropriate time, to ensure that such applications are free of charge.

Changes relating to section 67 of the Immigration Act 2016 leave

Section 67 of the Immigration Act 2016 requires the Government to relocate to the UK and support a specified number of unaccompanied children from Europe. In line with this provision to the Immigration Act 2016, and following consultation with local authorities, the Government set the specified number at 480.

The spirit of the Parliamentary debates at the time of the Act’s passage, and the Secretary of State’s statutory obligation towards these children – ‘to relocate and support’ – is interpreted as rationale for granting a bespoke form of leave to this cohort over that which is granted to asylum seeking children who arrive in the UK via other routes (e.g. clandestinely) who, following an assessment of their asylum claim, do not qualify for international protection in line with the 1951 Refugee Convention or humanitarian protection leave.

The Government interprets the obligations under section 67 of the Immigration Act 2016, due to the requirement to ‘relocate and support’ as being more akin to the requirements on the state for providing protection and support to those who are granted refugee leave in the UK. We are therefore laying Immigration Rules to create a new form of leave – ‘section 67 of the Immigration Act 2016 leave’ – for those children transferred under section 67 of the Immigration Act 2016 who do not qualify for leave under the current Immigration Rules (either as refugees or other protection-based leave). Individuals who qualify for section 67 of the Immigration Act 2016 leave will have the right to study, work, access public funds (claim benefits and housing support) and healthcare, and apply for indefinite leave to remain without paying a fee after five years.

Changes relating to family life

The following changes and clarifications are being made to the Immigration Rules relating to family life:

  1. To confirm that an adopted child with limited leave under the family Immigration Rules and who is aged 18 years or above, must meet a Knowledge of Language and Life requirement before being eligible to apply for settlement.
  2. To remove reference to tax credits from the specified evidential requirement for dividend vouchers.
  3. To clarify that a person applying as a partner or parent under the 5-year route of Appendix FM, cannot rely on paragraph EX.1. exceptions to certain eligibility requirements, and must instead meet all eligibility requirements at every application stage to be granted on a 5-year route, and to settle after 5- years.

New indefinite leave to remain rules for ECCA workers and business persons and their dependants

  1. The European Communities Association Agreement (ECAA) was set up, under the Ankara Agreement on 12 September 1963, with the general aim of promoting economic relations between Turkey and the European Economic Community and supporting the eventual accession of Turkey to the European Economic Community. The UK became an automatic signatory to the ECAA when it joined the Community in 1973.
  2. Under the Agreement and its associated Protocols, there are specific provisions (commonly referred to as the “standstill clause”) made for rights of access to the labour market for Turkish workers, and rights to establish a business, with conditions which are more favourable than those afforded to other third country/non-EU nationals. This had the effect of preserving the relevant parts of the Immigration Rules as they stood in 1973 for relevant applicants.
  3. In March 2017, the Upper Tribunal confirmed that the “standstill clause” did not apply to indefinite leave to remain in the UK for ECAA business persons. The Court of Justice of the European Union (CJEU) had already determined as such for ECAA workers. As a result, the ILR route for business persons was closed on 16 March 2018.
  4. The Government is introducing a new category within the current Immigration Rules that will provide a route for Turkish ECAA business persons, workers and their family members who wish to obtain ILR in the UK. The new ILR provision will recognise time spent as either an ECAA business person or as a worker (or equivalent Points Based System routes), as long as the most recent period of leave was under the ECAA.
  5. For dependants, children will be granted ILR in line with the main applicant where the relevant criteria are met, whilst spouses, civil partners and unmarried partners will require five years residency, in line with other Points Based System routes, and to meet associated eligibility requirements.
  6. In line with the Points Based System routes, the Government is also introducing a new category, for family members of ECAA workers or business persons to apply for further leave to remain (three years) to enable them to reach the five year residency requirement. This will enable the main applicant to obtain ILR at the earliest opportunity (five years) and their spouse or partner to qualify subsequently.
  7. Limited leave will also be available to a specified cohort of dependants currently in the UK without leave. This will only apply to individuals who were unable to obtain indefinite leave to remain at the time their ECAA dependant leave expired, due to the two year requirement in the ECAA ILR policy in force before 16 March 2018, and who were unable to obtain further limited leave due to their sponsor acquiring ILR, thereby no longer benefiting from the ECAA provisions.

The review clauses at the beginning of this Statement of Changes require the Secretary of State to review the operation and effect of all of the relevant Immigration Rules, including any rules amended or added by the changes in this Statement, and lay a report before Parliament within five years of 6 April 2017 and within every five years after that. Following each review, the Secretary of State will decide whether the relevant Immigration Rules should remain as they are, be revoked or be amended. A further Statement of Changes would be needed to revoke or amend the relevant rules.

Legal notice: this information does not substitute any legal advice. Please seek specialist legal advice before making any decision. ICS Legal terms and conditions apply to all posts in this website. 

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